What We Can Learn from ABA's Ratings of Obama Judicial Candidates

December 1, 2011

by Nicole Flatow

Last week, TheNew York Timesrevealed that a disproportionate number of President Obama’s minority and female judicial nominees were rated “not qualified” by the American Bar Association. Out of the 14 nominees that received the rating, just one was a white male.

American Constitution Society Board Member Robert Raben, the president of The Raben Group, called the story “at least welcome, at most desperately needed” in a guest post for ACSblog. Transparency is needed, he explains, to root out practices or biases that may explain “why minorities more than whites seem to crash on the establishment shoals.”

“I have not seen a single Latina nominee who wasn't either hit or slammed by some establishment group -- a bar association, a leader of a not for profit, a bar leader, a judicial committee -- as being ‘intemperate’; lacking ‘seasoning’; ‘inexperienced’, ‘not that bright’, etc.,” Raben writes. “There's a possibility that the entire cohort of Latina lawyers who want to be federal or state judges just don’t deserve it yet, but I'm not buying it. I think there's something else going on, and I think that unearthing what may be going on within the ABA's cloistered process may help us get to the bottom of this.”

In The Daily Beast, University of Colorado at Boulder law professor Paul Campos addresses claims by the right that Obama’s picks were rated “not qualified” at a higher rate than Bush’s or Clinton’s because Obama prioritized affirmative action over merit. Campos provides evidence that “the Bush administration engaged in more aggressive affirmative action when it came to nominating federal judges than the Obama administration has,” given the smaller pool of conservative minority candidates.

Instead, there is another “quite simple” explanation for the higher number of Obama candidates rated “not qualified”, Campos writes:

[J]ust two months into his first term, Bush informed the ABA that he would not submit proposed nominations to the group prior to formally nominating his picks. This political power play turned out, in retrospect, to be extremely effective. It’s much harder for the ABA to give a thumbs-down to a public nomination that it is for it to secretly quash a potential nominee.

Campos also calls for transparency going forward, suggesting that future presidents should at least force the ABA to “explain itself in the court of public opinion.”